# Opposition Brief — Coffey v. Pierson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 825

## Text

(Dr
. Supreme Court, U.S.
i ! FILED
JUL 14 1986

JOSEPH F. SPANIOL, JR.

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986

NO.

HAROLD COFFEY, and JERRY DEAL,
Individually and d/b/a C & D
HARBOR SERVICE; and C &D
HARBOR SERVICE, INC.,

Petitioners,
VS.

JOHN H. PIERSON and his
wife, GYNELLE PIERSON,

Respondents

ON WRIT OF CERTIORARI
TO THE COMMONWEALTH
OF KENTUCKY COURT OF APPEALS

RESPONDENTS’ BRIEF

104 North 5th Str
i Murray, Kentucky 42071
(502) 753-8900

Counsel for Respondents

QUESTIONS PRESENTED
|. Does the Public Right of Navigation Allow:

A Private Individual, Claiming No Title to
Land, to Establish a Permanent Installation in
the Submerged Land of a Non-Consenting
Riparian Owner for the Private Purpose of
Operating a Commercial Barge Storage
Business for Profit.

li. May the Corps of Engineers, Having No Title to Such
Land, Grant a Right to a Private Individual, Also Claiming
No Title to Such Land, to Place Boulders or Other
Permanent Anchoring Installations, on the Submerged
Land of a Non-Consenting Riparian Owner for the
Purpose of Constructing and Establishing a Barge
Storage Business Thereon, Especially in View of the
Disclaimer Placed by the Corps of Engineers in the
“Permit” Which Expressly Denies that Such Permit
Conveys Any Property Rights in Real Estate or
Authorizes Any Injury to Property or Invasion of Rights.

PARTIES TO THE

PROCEEDING IN THE STATE COURTS

The following is a list of all parties to the proceeding in

the state court whose judgement is sought to be reviewed:

3

2.

Harold Coffey and Jerry Deal, Individually and
d/b/a C & D Harbor Service; and C & D Harbor
Service, Inc. (Petitioners herein);

John H. Pierson and Gynelle Pierson, husband and
wife (Respondents herein);

Kenneth E. Love, Individually and d/b/a Marine
Service (Mr. Love was a co-defendant with
Petitioners in the state court proceeding; Mr. Love
was held liable as a trespasser in the State Courts.
The Corps of Engineers permit granted to him on
May 22, 1980 (a copy of which is set out in the
Petition at pages F1-F12) was determined by the
Kentucky Court of Appeals to NOT convey any
property rights nor authorize Mr. Love to place the
disputed boulders on Respondents’ riparian
property without their consent (Petition at page
A10). Kenneth E. Love has chosen NOT to apply to
this Court for review of that decision).

ra

TABLE OF CONTENTS

Questions Presented ....................2..
Parties to the Proceeding in the State Courts
ss cc ccercsvoccecsees

Reasons Why This Petition Should Be Denied:
1. The Petition for a Writ of Certiorari is
Premature Since the Trial on Damages has
oo ee
2. The Holder of the Corps of Engineers
Permit, Kenneth Love, has Elected not to
Appeal the State Court Decision That this
Permit Does Not Grant Him Any Property
Rights in Submerged Land, and Petitioners
Should Not be Allowed to Raise Such
Defense in Love’s Behalf ................

3. The Decision That a Private Individual
Claiming No Title to Land Has No Right to
Establish Permanent Commercia!
Installations in the Submerged Land of a
Riparian Owner for the Private Purpose of
Operating a Barge Storage Business for
Profit Is Consistent With All Reported
Federal and State Decisions .............

ES

9-18
18

TABLE OF AUTHORITIES

Cases PAGE
Anderson v. Reames, 204 Ark. 216, 161 S.W.2d

SE CUE niin ao wide Canin gC Nel en elle WAN eww oe 17
Barr v. Spalding, 46 F.2d 798, 799 (1928) ............. 10
Berry v. Snyder, 3 Busch 266, 66 Ky. 266 (1867)......... 10
Brusco Towboat Co. v. Oregon, 589 P.2d 712

SE CEU e a Tear kins Deane de ERTS DEAR S SO bGd eA oO 12
County of Marin v. Roberts, 84 Cai. Rptr. 425

PUREE kaon Rp sien eh ae ee eee amuAle 64s we be eens 13
Driesbach v. Lynch, 234 P.2d 446 (1951) .............. 14
1 Fornhon, Water and Water Rights, Sec. 46

“5, RR RRR eeepc peice 9 ae UIE i af ieee pe ene Ce 18
Fruin-Colnon Corp. v. Vogt, 500 F. Supp. 606

CPE cu ide awk dy ewe ee eens eee wee ee hia oe eke's 13
Georgia Railway Co. v. Decatur, 262 U.S. 432,

437, 43 S.Ct. 613, G7 1..BG. TORS (1GEe) 2... cece scene 7
Hall v. Wantz, 57 N.W.2d 462 (1953) .................. 17
Hough v. Ohio Rivers Sand Company, 288

ee Se PE A 6 Kd teehee oboe eta nee esses ay 10
Kuramoto v. Hanoda, 30 Haw. 841 (1929) ............. 17

Munninghoff v. Wisconsin Conservation
Commission, 38 N.W.2d 712, 255 Wis. 252

SEE Sake s sb 00 069 648 4SbNS ooo ee eater tah he Kena oe 14
Natcher v. City of Bowling Green, 95 S.W.2d
OS eT ere rere 11

Paducah Sand & Gravel Co. v. Central Home
Telephone & Telegraph Co., 273 S.W. 481,

482, 209 Ky. 756 (1925) ..... apa peel ree 11
Patterson v. Dust, 190 Mich. 679, 157 N.W. 353

RO 5c gc da suede ee as ee a eae oes kb da 17
People v. Kraemer, 164 N.Y.S. 423, 429 (1957)......... 18

IV

Republic Natural Gas Co. v. Oklahoma, 334
U.S. 62, 67, 92 L.Ed 1712, 68 S. Ct. 972 (1948) ....... 7

St. Anthony Falls Water Power Company v. St.
Paul Water Commissioners, 168 U.S. 349, 364

PO Nie ete use urea betel uve axts is ude vekecee 15
State v. Graham, 26 P.2d 46 (1933) ................... 13
Steel Creek Development Corporation v.

SE, Te I PEED 6b do hoe dmae ccbsndsccss 12

United States v. Chandler-Dunbar Water Power
Co., 229 U.S. 53, 62, 57 L.Ed 1063, 1075, 33

SE Be koe cas cak se vaweucs 10
West v. Smith, 95 Idaho 550, 511 P.2d 1326

DO ata ad cade SE Ce os aa ee ty eee ocx 18
Whitson v. Morris, 201 S.W.2d 193 (1946) ............. 10
Wilson v. Watson, 132 S.W. 563, 141 Ky. 324
cit N aera Te es a ed Se 10
Wisconsin v. Bleck, 388 N.W.2d 492 (1983) ........... 16
Yates v. Milwaukee, 10 Wall. 497 ..................... 11

Vv

STATEMENT OF THE CASE

Petitioners are conducting a permanent commercial
barge fleeting/storage business along the shoreline of the
Mississippi River in the State of Kentucky.

Respondents are the adjacent riparian owners and own
the submerged iand to the thread of the River, under
Kentucky law; such ownership, however, is subordinate to
the public right of navigation and subject to the absolute
power of Congress over the improvement of navigable
rivers.

Respondents’ position, sustained by the State Apellate
Courts of Kentucky, is that the permanent anchorage
installations in the riverbed necessary to conduct the
equivalent of a floating parking lot, is an activity which is not
protected by the public right of navigation.

The Kentucky Court of Appeals’ decision from which
this application is based (Petition for Writ of Certiorari,
hereinafter Petition, Appendix A, pages A8 to AQ) adopted

the reasoning by the Michigan Supreme Court in Hall v.

Wantz, 57 N.W.2d 462 (Mich. 1953):

“ (A) riparian owner's property rights to
subaqueous lands are subject to an easement
in the public for navigation purposes and are
subject to the right to anchor as an incident to
the right of navigation, nevertheless the right
of navigation does not include, as an incident
thereto, the right to anchor indefinitely off the
riparian owner's premises...
‘Defendant, in the instant case, is not
confining himself to the exercise of the rights
of the public generally to navigation, but goes
beyond that to engage in a practice not
incident to or part of the right of navigation,
namely in permanent or indefinite anchoring
of his “ark” to plaintiff's subaqueous lands and
keeping the same in waters over such lands
for the purpose of conducting business there.
Id. at 464, 465.’
“Consistent with these statements, we hold that the
activities of appellees Love and C & D are not
activities which can reasonably be construed to be
within the definition of the ‘public right of navigation,’
as defined in the reported cases.”

—

2 0 ve eer ngreee

While the question of the liability of C & D as breaching
tenants and Love as a trespasser has been determined by the
Appellate Courts of Kentucky, there has been no trial in the
lower court as to damages. The trial court has continued the
trial of this matter without date, over objection of
Respondents.

As to the specific contractual relations of the parties, the

detail of the occurrences, and the surrounding

q
circumstances, Respondents believe that the introduction

recited in the Kentucky Court of Appeals decision (Petition,
Appendix A, pages A2 through AS) is factually correct and
hereby incorporates such recitation.

Respondents take exception to the misinterpretation
placed upon the decision of the Commonwealth of Kentucky
Court of Appeals on page 7 of the Petition.

Petitioners would have this court believe that a
permanent commercial barge fleeting/storage business
occupying 2.6 miles along Respondents’ shoreline (8 anchor
boulders placed 2,000 feet apart, Petition, Appendix F, page
F11) and using permanent anchor installations on
Respondents’ submerged iand constitutes only”...the
slightest and most insignificant interference with a riparian
landowner’s property rights...”

Petitioners were tenants of Respondents and breached
their agreement by non-payment of rent while continuing to
utilize Respondents’ submerged land and conducting the
same business in the same location.

Petitioners refused to pay further rent to Respondents

on the mistaken belief that if Petitioners used permanent

3

anchor installations for their bus'"ess which were affixed to

submerged land, no consent from the riparian owner would
be required; and they notified Respondents in writing to that
effect. (Clerk’s Record on Appeal below, Vol. |, page 26)

Petitioners continuously refer to the Corps of Engineers
Permit as being issued or assigned to Petitioners (Petition,
page 5 (assigned to Petitioners), 6, 7 (Petitioner is holder of
permit), 8 (permit granted to Petitioners), 9 (permit granted
to Petitioners), 10 (Petitioners obtained permit), 11 (Corps
permitted Petitioners to place anchor buoys) (trial court
weighed Petitioners rights under permit), 12 (Petitioners
had obtained a permit from the Corps to place their
anchors), 13 (Petitioners as holders of a Corps permit), 15
(permit issued to Petitioners) ).

Respondents would note that the Corps of Engineers
Permit, to which Petitioners lay great stress, was granted to
one Kenneth E. Love d/b/a Marine Service a defendant in the
lower court. (See Petition, Appendix F, Pages F1 through
F12)

Mr. Love has decided not to apply to this Court to review

the question of whether his Permit grants him property

4

rights to conduct his private business on the property of
another.

The permittee was Mr. Love as is apparent on the face of
the Permit itself and no evidence of an assignment or
transfer to Petitioners exists.

Petitioners state on page 14 of the Petition that it is a
“...fact that Congress has delegated to the Corps of
Engineers the authority to determine what is and what is not
‘navigation’...”

No authority for usurping such a judicial function was or
could be offered by Petitioners.

Absent an assignment, Petitioners have no standing to
raise the hypothetical issue of what rights, if any, a Corps of
Engineers Permit grants to a permittee or assignee.

Finally, Petitioners claim to be unable to comprehend
how it is possible for the Kentucky Court of Appeals to
conclude that Petitioners’ permanently anchored floating
parking lot is not a use within the “public right of navigation”
and at the same time say that the purpose of a Corps of
Engineers permit is to safeguard the public in exercising

their (the public’s) right of navigation.

5

The conclusion reached by Petitioners is that if their

business activity is not a use permitted under the public right
of navigation, it necessarily follows that the public right of
navigation has disappeared in its entirety.

On amore realistic note, however, as stated succinctly
by the Kentucky Court of Appeals: (Petition, Appendix A,
pages A7 to A8)

“Appellees (C & D, petitioner herein) are not
themselves engaged in activities which constitute
‘navigation,’ as defined by the relevant authorities.
Moreover, it is clear that appellees’ activities do not
fall within the purview of the public’s right to
temporarily anchor vessels in a navigable wat ‘rway.
Here, Love dropped boulders on appellants’ riverbed
in order to provide a permanent anchorage facility for
C & D’s offshore fleeting service business, and to
enable him to charge and earn rental fees to be paid
by C & D. Further, C & Dis not utilizing Love's anchor
buoys to temporarily anchor their own vessels for
recreational or commercial purposes. Rather, they
are using them to conduct a commercial business for
profit which, in exchange for a fee, makes permanent
overnight anchorage facilities available to barges
using the river. Thus, the situation in the instant
action is factualiy much different from the typical
situation, in which a vessei traveling the river for
commercial or recreational purposes drops anchor
for some temporary period as an incident of its
journey on the river.”

REASONS WHY THE
PETITION SHOULD NOT
BE GRANTED

1. The Petition for a Writ of Certiorari ls Premature
Since the Trial On Damages Has Yet To Be Held

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67,
92 L.Ed. 1712, 68 S.Ct. 972 (1948) is in point as to this issue:

“Thus the requirement of finality has not been met
merely because the major issues in a case have been
decided and only a few loose ends remain to be tied
up—for example, where liability has been determined
and all that needs to be adjudicated is the amount of
damages. Bruce v. Tobin, 245 U.S. 18; Martinez v.
International Banking Corp. 220 U.S. 214, 223:
Mississippi Central R. Co. v. Smith, 295 U.S. 718.”
(See also Georgia Railway Co. v. Decatur, 262 U.S.
432, 437, 43 S.Ct. 613, 26 L.Ed. 1065 (1923) )

Respondents are unaware of the federal questions that
Petitioners may raise at the trial on damages but with
initiative and imagination, a second climb up the appellate
ladder by Petitioners can be foreseen.

In four years of this landlord-tenant litigation,
Respondents have been denied judgement for rent,
damages, and attorney fees as provided in the lease

agreement. To grant the application for a Writ of Certiorari

prior to a final determination unduly interferes with
concluding this state litigation.

2. The Holder of the Corps of Engineers Permit,
Kenneth Love, Has Elected Not To Appeal the State Court
Decision That His Permit Does Not Grant Him Any Property
Rights in Submerged Land, And Petitioners Should Not Be
Allowed To Raise Such Defense in Love's Behalf.

As the Kentucky Court of Appeals stated in the instant
case:

“However, two months later C & D entered into a
separate agreement with appellee Kenneth Love
(Love), who had obtained a permit from the Army
Corps of Engineers authorizing the placement of
anchor buoys. The agreement provided that Love
would place several anchor buoys on the riverbed off
appellants’ shoreline. Further Love agreed in
exchange for a stated consideration that C & D would
have the exclusive right to use the buoys for a period
of five years. Pursuant to appellees’ agreement, Love
proceeded to place several twenty- to thirty-ton rock
boulders on the riverbed off appellants’ shoreline,
and attached mooring cables and anchor buoys to
them. Appellants did not consent to the placement of
the boulders.” (Petition, Appendix A, page A3)

in any event the Kentucky Court of Appeals heid that the
Corps of Engineers Permit did not convey any property

right. As stated by that Appellate Court:

“Love further contends that his placement of the
boulders was lawful because it was authorized by a
permit issued to him by the Army Corps of Engineers.
We disagree. The requirement that a person must
obtain a permit before he or she may place
obstructions in the river does not confer any interest
in riparian property upon the recipient of the permit.
Rather, this requirement merely safeguards the
public right of navigation by ensuring that there will
be proper regulation and placement of any
obstructions submerged in navigable waters. See,

Norfolk Dredging Company v. Radcliff Materials, Inc.
264 F.Supp. 399, 402 (1967). Moreover, the permit
obtained by Love expressly stated on its face that it
did not convey any interest in property. Hence,
contrary to Love’s contention, it is clear that the
permit did not authorize him to place the disputed
boulders on appellants’ riparian property without
their consent.”

Or, as more succinctly stated by trial judge, Willard
Paxton:

“That Corps of Engineers Permit didn’t mean diddly
squat.”

(Transcript of Hearing on December 14, 1982, page
17)

3. The Decision That A Private Individual Claiming No
Title to Land Has No Right to Establish Permanent
Commercial Installations in the Submerged Land of a
Riparian Owner for the Private Purpose of Operating a Barge
Storage Business for Profit is Consistent With All Reported

Federal and State Decisions.

ie)

a. Thetitle to the beds of navigable rivers of the United
States is either in the States in which the rivers are situated,
or in the riparian Owners, depending upon the local law.
United States v. Chandler-Dunbar Water Power Co., 229
U.S. 53, 62, 57 L.Ed 1063, 1075, 33 S.Ct. 667, 672 (1913)

b. in the Commonwealth of Kentucky, a riparian
owner owns the land to the thread of the stream. Whitson v.
Morris, Ky., 201 S.W.2d 193 (1946); Hough v. Ohio Rivers
Sand Company, Ky., 288 S.W.2d 655 (1956); Wilson v.
Watson, Ky., 132 S.W. 563, 141 Ky. 324 (1910); Berry v.
Snyder, Ky., 3 Busch 266, 66 Ky. 266 (1867); Barrv. Spalding,
D.C.W.D. Ky., 46 F.2d 798, 799 (1928); Trial Court Judge
Paxton, Transcript of Hearing on December 14, 1982, pages
15, 39-40; Transcript of Hearing of February 1, 1984, page 14

c. The title of the riparian owner to the bed of a
navigable stream is a qualified one, and subordinate to the
public right of navigation and subject to the absolute power
of Congress over the improvement of navigable rivers.
United States v. Chandler-Dunbar Water Power Co., supra;
Trial Court Judge Paxton, Cierk’s Record on Appeal below,

Vol. Vi, page 824

10

Natcher v. City of Bowling Green, Ky., 95 S.W.2d 255,
257 (1936): “In and on a navigable stream, the title of a
riparian owner...particularly of the bed...is a qualified one,
for it is subject to the dominant rights of the public in the
stream. Navigable rivers are and 2iways have been regarded
as public highways.”

Paducah Sand & Gravel Co. v. Central Home Telephone
& Telegraph Co., Ky., 273 S.W. 481, 482, 209 Ky. 756 (1925):
“The use of navigable streams is analogous to that of the use
of public highways, and, concededly, the right of navigation
is paramount to any other rights that may be acquired in the
use of such streams.”

d. This riparian right is a valuable property right and
though it must be enjoyed in due subjection to the rights of
the public, it cannot be arbitrarily or capriciously destroyed
or impaired. It is a right of which, when once vested, the
owner can only be deprived in accordance with established
law; and if necessary that it be taken for the public good,

upon due compensation. Yates v. Milwaukee, 10 Wall. 497.

11

e. Federal and state decisions from other jurisdictions
are consistent with the holding of the Kentucky Court of
Appeals in the instant case:

Boathouses held in floating position by anchors in
submerged land, held to be a trespass on submerged land
owned by riparian owner. Steel Creek Development
Corporation v. James, N.C. App., 294 S.E.2d 23 (1982)

“Owner of the bed of a river is certainly entitled to
prevent permanent structures on the surface of the water
which preclude other uses of the bed, whether or not they
actualiy rest on the bed itself.” Brusco Towbcoat Co. v.
Oregon, Or., 589 P.2d 712 (1978)

In Illinois, a contractor anchored a spud barge on the
bed of the river for the purpose of extended construction
without permission of the riparian owner. The Federal District
Court held that such a use was not within the navigational
servitude and constituted a trespass upon the submerged
land of the riparian owner. The Court stated specifically that
a riparian landowner holds exclusive mooring and wharfing

rights incident to the ownership of title to the middle of the

12

main channel of the Mississippi River. Fruin-Coinon Corp. v.
Vogt, USDC, SD lil., 500 F.Supp. 606 (1980)

In the California case of County of Marin v. Roberts, Ca.
App., 84 Cai. Rptr. 425 (1970) defendant maintained
drydocks on submerged land of a non-consenting owner,
claiming its drydocks were within the public right of
navigation and also that defendant had received a permit
from the Corps of Engineers.

At page 430 the Court stated:

“Wise’s contention overlooks the fact that even if
the Corps of Engineers had issued a permit here,
such a permit would in no way inhibit the rights of the
property owner, the County, from ejecting Wise as a
trespasser. A Corps of Engineer’s permit merely
safeguards the public right of navigation - it does not
confer any interest in property. (Norfolk Dredging
Company v. Radcliff Materials, inc., D.C., 264
F.Supp. 399, 402). Similarly, the anchorage permits
issued by the Coast Guard relate only to promoting
safe navigation and confer no property interest (33
C.F.R. 110.214, pages 347-348).” (emphasis
supplied)

To the same effect is the Oregon case of State v.
Graham, Ore., 26 P.2d 46 (1933) at page 52:

“The license which the United States engineer
issued to Barbey (pursuant to 33 USCA 403; 30 Stat.
1151) authorizing him to proceed with the
construction of the wharf was a mere declaration that

3

the structure would not interfere with or be
detrimental to navigation, and was not a declaration
by authority of Congress that he could erect the
wharf without first obtaining authority from the state
of Oregon (cases).”

In Driesbach v. Lynch, \d., 234 P.2d 446 (1951), the
Idaho Supreme Court held that since the title to the bed of a
navigable lake was not vested in the United States, the
Secretary of War could not grant rights to third parties to
maintain docks and pilings within the littoral boundaries of
another littoral owner, thereby interfering with the rights of
such littoral owner, and the permit issued by the Secretary
was inadmissible as evidence to defend against trespass.

The State of Wisconsin has also expressed its position
with respect to what is and what is not “navigation.”

After stating the rule in Wisconsin that the owner of the
banks of the stream is the owner of the bed, the Court in
Munninghoff v. Wisconsin Conservation Commission, Wis.,
38 N.W.2d 712, 255 Wis. 252 (1949) stated:

“In general, the rights of the public to the
incidents of navigation are boating, bathing, fishing,
hunting and recreation (citations) ...Appellant
asserts that float trapping does not require the use of
the bottom. However, floats for float trapping are
always anchored to the bottom and any method of
anchoring or securing a float would, of necessity,

14

require the use of land on the bottom...To float trap in
navigable water constitutes a trespass upon the
submerged land for which the trespasser may be
prosecuted by the owner of the said land and
enjoined from using public water for that purpose...

“Appellant also asserts that the right of
navigation includes the incidental use of the bottom.
This is true where the use of the bottom is connected
with navigation, such as walking as a trout fisherman
does in a navigable stream, boating, standing on the
bottom while bathing, casting an anchor from a boat
in fishing, propelling a duck boat by poling against
the bottom, waiking on the ice if the river is frozen,
etc. These have nothing in common with trapping
because the latter involves the exercise of a property
right in the land or bottom.”

This Court, in an extensive opinion, stated in St. Anthony
Falls Water Power Company v. St. Paul Water
Commissioners, 168 U.S. 349 (1897) at 364:

“In Kaukauna Water Power Company v. Green
Bay & Mississippi Canal Co., 142 U.S. 254 (1891), Mr.
Justice Brown, in delivering the opinion of the court,
said at page 271: ‘It is the settled law of Wisconsin,
announced in repeated decisions of its Supreme
Court, that the ownership of riparian proprietors
extends to the centre or thread of the stream,
subject, if such stream is navigable, to the right
of the public to its use as a public highway for
the passage of vessels (citing cases). In City of
Janesville v. Carpenter, 77 Wisconsin, 288, 300, it is
said of the riparian owner: He may construct docks,
landing places, piers and wharves out to the
navigable waters, if the river is navigable in fact,
... 9ubject to these restrictions, he has the right to use
his land under water the same as above water. It is his

15

private property under the protection of the
Constitution, and it cannot be taken, or its value
lessened or impaired even for public use, “without
compensation,” or “without due process of law,” and
it cannot be taken at all for any one’s private use.’ ”
(emphasis supplied)

A recent Wisconsin case, very similar on its facts to the
instant situation is Wisconsin v. Bleck, Wis., 388 N.W.2d 492
(1983) in which a non-riparian owner claimed the right to
maintain anchors in the bed of a navigabie lake for the
purpose of mooring a water ski jump. The discussion of the
Wisconsin Supreme Court appears on page 498:

“The only use of the water that was regulated in this
case was one dependent upon a structure secured to
the lake bottom. Through the enforcement of sec.
30.12, the state seeks not to preclude the petitioners’
recreational use of Bass Lake but only to control
petitioners’ unauthorized placement of a structure on
the bed of a navigable lake. The fact that the state's
regulation of the use of the lake bed pursuant to its
authority under sec. 30.12 may have an incidental
effect on the petitioners’ recreational use of the lake
does not amount to a violation of the public trust
doctrine.” (emphasis supplied)

The Michigan case of Hall v. Wantz, supra, uses the
analogy of a Vermont case to dispose of the arguments of

the permanently anchoring businessman that since the

16

traveling public is convenienced by his services, he must be
engaged in navigation. The Response appears on page 464:

“In Furlong v. Deringer, Inc., 111 Vt. 220, 13 A.2d
186, 187, the court in a like case granted injunctive
relief and said: ‘That the public is entitled to a proper
viatic use of a highway is too well established to need
argument or citation of authority. However, this fact
does not avail the defendant in this case...It
(defendant) is here claiming right to occupy
plaintiff's land (within the highway boundaries) for
the purpose of conducting a busines for its private
gain and profit. |t makes an attempt to justify its claim
upon the ground that the nature of its business is
such that the travelling public is convenienced
thereby. This same argument may be used with equal
force to one who sets up on another's land within
highway limits a gas station, garage, restaurant and
dozens of other business stands. Here the defendant
is attempting to take another's property for its private
use against the will and without the consent of the
owner. This cannot be done. (Citing authorities)’ ”
(Emphasis supplied)

Authorities are numerous for the proposition that the
public right of navigation includes only a temporary right of
anchorage as an incident necessary to the enjoyment of the
right of navigation.

Anderson v. Reames, 204 Ark. 216, 161 S.W.2d 957 (1942)

Kuramoto v. Hanoda, 30 Haw. 841 (1929)

Hall v. Wantz, 336 Mich. 112, 57 N.W.2d 462 (1953)

Patterson v. Dust, 190 Mich. 679, 157 N.W. 353 (1916)

17

West v. Smith, 95 idaho 550, 511 P.2d 1326 (1973)
1 Fornhon, Water and Water Rights, Sec. 46 (1904)
Peopie v. Kraemer, 164 N.Y.S. 423, 429 (1957):

“The harbor is located in a region in which there
is a substantial amount of commercial traffic of a type
that might utilize the harbor for purposes of
navigation as, for example, to lay up overnight in the
course of a journey through the Sound.”

CONCLUSION
For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

104 North 5th Streét
Murray, Kentucky 42071
(502) 753-8900

Attorney for Respondents

18

'
“ta,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2074%3A2. Public record. Not legal advice.